U.S. Dept. of Education Finds Virginia at Fault for Continued Noncompliance

The United States Department of Education (USDOE) Office of Special Education Programs (OSEP) determined the Virginia Department of Education (VDOE) “has not demonstrated correction of all the noncompliance identified in [OSEP’s] June 23, 2020, Differentiated Monitoring and Support (DMS) monitoring letter” and that it remains “concerned about the volume and nature of the concerns raised by [multiple parents and other stakeholders].”

June 23, 2020, Differentiated Monitoring Report

June 23, 2020, OSEP issued a DMS Report about Virginia.

For each issue cited, there was an action required by OSEP—and these actions had 90-day timelines associated with them.

8.4.20: I requested formal guidance from OSEP and asked:

Is it OSEP’s position that, after its monitoring letters are released, it is acceptable for the SEA and LEAs to continue taking the very actions they’ve been asked to correct?

August 20, 2020, OSEP Associate Division Director Matthew Schneer replied:

As you noted, our monitoring letter to VDOE, dated June 23, 2020, provides 90 days for VDOE to meet the required actions.  OSEP is engaging in discussions with VDOE on how the State will come into compliance.  However, any actions or activities by VDOE or its LEAs that are not consistent with IDEA in the interim period will be considered noncompliance and subject to the requirements in 34 C.F.R. § 300.600(e).

Two Years Later: Noncompliance Continues

In response to the DMS letter, VDOE submitted corrective action documentation to OSEP on September 18, 2020, October 29, 2020, March 4, 2021, and December 21, 2021.

February 8, 2022, OSEP sent VDOE its response to the corrective action information. The cover letter and enclosure (see documents below) was sent by Valerie Williams, director of OSEP, to Jillian Balow, superintendent of public instruction for VDOE.

Special Education Action obtained the February 8, 2022, letter yesterday in response to a FOIA request submitted to VDOE.

In addition to noting VDOE’s continued noncompliance, the letter specifically notes “concerns about VDOE’s compliance with its general supervisory responsibilities” and states the following:

Through this letter, we are providing notice that OSEP intends to engage further with the State on the following allegations:

a. Whether LEAs are properly addressing consideration of extended school year (ESY) services.
b. Whether, in certain situations, the maximum allowable charges for evaluations established by an LEA result in a denial of parents’ rights to an IEE at public expense.
c. Whether LEAs are denying parental requests for IEEs without initiating a due process complaint to demonstrate the public agency’s evaluation of the child is appropriate.
d. Whether LEAs are ensuring all access rights to special education records.

e. Whether Due Process Hearing Officers are refusing to open parents’ (virtual) hearings to the public.
f. Whether LEAs are providing all accommodations and services included in children’s IEPs that are necessary for the provision of FAPE.
g. Whether the State’s complaint resolution process addresses allegations of systemic noncompliance occurring within LEAs.

According to the enclosure, “within 90 days of the date of this letter, consistent with the State’s general supervisory and monitoring responsibilities described above, VDOE must provide a written plan to OSEP that describes how it will ensure that all of its LEAs meet the requirements of Part B of IDEA. The State’s plan must include a description of the steps VDOE will take . . . ” In addition, OSEP set a March 10, 2022, date to respond to a number of the required actions.

According to USDOE, neither the cover letter nor the enclosure have been made public, hence they don’t appear in the DMS section of USDOE’s site.

Click on the image below to access the full cover letter.

Click on the image below to access the full cover letter.

3 comments on “U.S. Dept. of Education Finds Virginia at Fault for Continued Noncompliance

  1. The VDOE is definitely not monitoring the time lines of Due Process. Instead of 45 days, our Due Process was over 150+ days to get a decision. When will USDOE stop the $ flowing into VA??? That’s the only way to get their attention. Everyone has heard of Click It or Ticket? VDOE needs to Reform or money will be Reduced every day they are out of compliance. No $ for VDOE, no $ for Districts.

    1. Have you contacted the U.S. Dept of Education and/or VDOE about this? Noncompliance only can be addressed if it is known. The LEAs could tell VDOE one thing, but something else could be the truth. Same with VDOE’s communications to USDOE.

  2. please contact me – being from chesterfield county I can link Lane from Goochland to Cardona in explicit detail- THIS IS WHY THE DOE DOESN’T CARE- the letter to Balow is actually comical considering THE MAN who did all of the ignoring and violating works as second in command for the Fed Ed dept that sent the letter!

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